Under current data protection laws, every individual in the UK (whether legally or illegally resident in the UK) has the right to request a copy of the data held by the Home Office on them. To obtain a copy of that data, a person can make a “Subject Access Request” (SAR) to the Home Office and pay a fee of £10.
Immigration lawyers often make SAR applications to the Home Office because frequently (in my experience) the Home Office get things wrong and try to remove individuals who have a legal claim to be in the UK. This happens sometimes in error, but quite often willfully. The Windrush Generation scandal is a good example of this.
The new laws which are to be introduced by the Data Protection Bill will allow the Home Office to deny an individual the right to a copy of their immigration records, if the Home Office believes that it will undermine immigration control. This will allow the Home Office the right to exercise a data protection exemption.
Where there is no transparency, power is more likely to be abused. Under the proposed new laws, if the Home Office suspect that someone is a migrant, they can use the data protection exemption to prevent that person from obtaining the necessary proof that they are legally in the UK. This is at odds with the rule of law and principles of natural justice upon which this country was founded.
Joe Egan, the president of the Law Society, said:
“Recent events have shown how important it is to be able to scrutinise Home Office decision making.
The [EU’s General Data Protection Regulation] GDPR and data protection bill are based on accountability and transparency and the proposed [Home Office] exemption completely flies in the face of these principles.
Anyone seeking their own personal data from the Home Office could be denied access without justification and with no avenue to appeal.
With serious flaws in the immigration system being exposed on a daily basis, there is deep concern about the potential for miscarriages of justice if the proposed exemptions were to be included in the final bill.
They should amend this bill. It is unacceptable that the government should be pressing ahead with legislation that allows agencies to breach data protection rights for anyone who is suspected of being a migrant. Otherwise they will show they have learned nothing, and are determined to maintain the hostile environment at whatever human cost.”
The views of Joe Egan are echoed by the Joint Council for the Welfare of Immigrants (JCWI), fellow lawyers and other political parties. Dianne Abbot and David Lammy have been the most vocal when attacking the proposed changes.
The Home Office spokesperson in response to the criticism said:
“It is wrong to say that the proposed narrow exemption in the Data Protection bill is an attempt to deny people access to their data. People will still be able to request data as they can now and will be met in all cases except where to do so could undermine our immigration control. They will have the right to complain to the information commissioner if they disagree with any use of the immigration exemption and we would always want to assist those whose claims are in question.”
I believe that unless lawyers have unfettered rights to access the data on their clients held by the Home Office, then this could lead to even poorer decision making than that which already exists.
Head of Immigration